Q&A: Discussing the Future of NIL With Seton Hall University Sports Law Professor Robert Boland, Esq.

Last Updated on January 13, 2023

Robert Boland, Esq. is a sports law professor at Seton Hall University and is considered a national thought leader within NIL. He has more than 25 years of experience navigating NCAA rules and recently served as a leader on the sports staff of Penn State University, helping to oversee the arrival of NIL. Business of College Sports writer Darian Kelly chatted with Boland about the future of NIL and more.

Darian Kelly: Bob, thank you again for making the time for us to speak today. I wanted to jump into the first question that I had: what scenarios could potentially land a player or the school in trouble with the NCAA and how is the NCAA regulating these deals when it comes to NIL?

Robert Boland, Esq.: Well, that’s a great question. The answer is accepting “pay for play” would be a scenario that would get a player ineligible. The NCAA put out some new guidance back in October, which was a little surprising to those who watch it closely. But it reiterated that “pay for play” would be a problem. 

It would also be a problem if schools directly arranged NIL deals for athletes. And then it went on to say collectives were just fine, which we thought maybe they were going to pull back on coming into that guidance, but they actually put collectives in, I think a strong word kind of put them in as a steady part of this process now as a third party.

So, the one context when we talked about it before is if an athlete received payment from a bowl game or from a conference to participate in a bowl game, which is interesting because, to some degree, that might be one of the things that would make the bowl games more interesting, is that you could pay players rather than have them skip it for the draft, particularly if it was a matchup that gave them some value. I was an agent for about 15 years, and our old scenario was you really wanted to go to a bowl game where you got some matchup value by playing against a good player. You got good film out of it, and you hoped it would be a positive.

Kelly:  So, as we transition into more of an idea when we talk about the idea of promoting a product, what is the line that is crossed between promoting a product and promoting a game?

Boland: That’s exactly it, a specific contest would probably not be okay that I’m gonna participate in, I’m gonna participate in the Sugar Bowl, or I’m gonna participate in a basketball tournament or I’m gonna participate in something, that’s probably a problem. Could you participate and work with the sponsors of that game? Probably very likely, yes. If it wasn’t specific to the promotion of the game. And to some degree, as we watch this from the sidelines, this is one of those things that looks like a difference or degree without a difference., There’s not really much point of that… If we’re allowing NIL and athletes to sign NIL deals, why are we only allowing them to use their name, image, and likeness to promote products or sponsors rather than specific events?

It seems a little bit counterintuitive, but remember, we’re, again, only 18 months into this structure, and the NCAA is trying to cobble together and hang on to some of its old rules while giving way to the new one pretty quickly, I’d probably say. Where this becomes interesting and flashes back to your first question is God knows what would happen to anybody if they ran afoul of that. At least right now, the NCAA, because they sanction bowls and they sanction conferences to a degree, their guidance with regard to specific performance of bowl games and getting paid by conferences as part of TV or media rights has so far remained off base and we haven’t seen anything cross it thus far and probably won’t this year. I think we’ll see some pressure toward next year.

Kelly: Can Congress get involved to make new federal laws that give the NCAA the ability to create, and enforce rules without running into legal problems?

Boland: If you’re listening and viewing this and you watch what happened in Congress for the four days, I at least got a day or two in Europe away from it. I can’t imagine Congress is going to functionally make a law to deal with this and we have a lot of debate back and forth of people who look at this but I can’t really see congressional help. I think if you think about it, what the NCAA wants in terms of congressional help, is to allow them to have a 50-state rule and let them govern this again. And I think that brings them right back into the antitrust problems that got them in trouble with Alston and O’Bannon. So, the idea that controlling this is probably really, really difficult.

They can pick around the edges, they can say some things are good, some things aren’t, but I don’t think they really want control of this in the current environment. So, for them to get control from Congress, they’re gonna need an antitrust-exempt exemption and some congressional oversight, which probably is one of those things you file under “be careful what you wish for.” On the other hand, the athletes probably don’t want that because the ability to sue the NCAA and antitrust is still their greatest weapon — the idea that the NCAA, when it makes rules, is engaging in some sort of labor or price fixing.

Kelly: With the College Football Playoff expanding, how do you think the expansion will impact how brands [have] relationships with particular athletes? And then as a follow up to that, do you see the expansion will the championship game then become kind of similar to the Super Bowl, where it’s the ultimate kind of marketing activation event?

Boland: Yeah, and if you think about it, the CFP is run by a third party neither the NCAA nor the Bowls, nor the schools or the conferences. It’s run by the College Football Playoff Association right now who wants to sell advertising and marketing time as much as the next person. So, the idea is you’re introducing a new marketing participant in this. They’re gonna want to have the thing that you want most in this is the ability to activate around the athletes, not just the schools. Not just the games themselves, particularly if we move off the bowl games scenario and into home playoff games in the first round. We’re gonna want to have the ability to have athletes to activate. And to some degree, I think you’re gonna see the way they’ll manage that at the NCAA prohibition about playing in a game becomes a problem, or playing in a tournament becomes a problem.

The way that you’d manage it is you’re gonna sign some of the players, you’re gonna sign the 16 best teams, and then you’ll have to adjust on the fly once or twice at the end to get some better players, newer players. And if they, if TCU comes through and you didn’t, you didn’t have them in your pool, but marketers do that all the time. They did that around the Olympics, the USOC allows you to use six Olympic athletes under a program of sponsorship. And I had a friend who had a new marketing firm and he got all six athletes into the Olympics. Coca-Cola missed with three and they’re the largest and oldest Olympic sponsor. So, I think the way you’ll deal with that is you’ll pick out key teams, key players, and you’ll sign them to season-long or half season long sponsorship and activation deals.

So, you have some ability to use them and have some familiarity with them. And that’s consistent with what I saw even in the first year, the best deal that I saw, I don’t know if you…a couple things that you didn’t get in my bio, but I was an agent for about 10 years. I was a lawyer and a professor at NYU and then I took a job as the athletic integrity officer at Penn State where I was on duty when we oversaw the, implementation of NIL. 

But because I was an agent and because I’m a sports lawyer and I’m a professor, this was such an interesting topic to me because it went along with everything I’ve done in my life. So, this was, hugely interesting, so I saw a lot of NIL deals. The biggest I’ve seen is about $48,000 and it was with an existing kind of national sponsor. So, I think you’ll see a lot of national sponsors who are in college football and are going to be in college football for the season, choose playoffs, regular season, conference, and maybe they’ll take a little bit of column A, column B and column C.

Kelly: And as a follow-up, one of the things that I find interesting in the NIL landscape is, from a legal perspective, you have athletic departments that have relationships with particular brands and particular sponsorships, and you also have players that have their own. 

Where do you see as, like you mentioned early on, we’re 18 months in as we get further and further into the NIL landscape, how will the relationship dynamic change between the players versus coaches as well as athletic departments when it comes to partnerships?

Boland: That’s a fascinating question. It’s one I thought about a lot. Let’s go to the most recent indication of that. I don’t think he wore it particularly well — although it wasn’t a bad looking suit — but Caleb Williams shows up in an Adidas branded suit to pick up the Heisman Trophy and he plays for a Nike-branded school, and he played for a prior Nike-branded school. So, my thought would be, I haven’t heard about that yet. That one has not caused shockwaves or tremors. It will cause shockwaves and tremors when he starts to put Adidas shoes on the field or, or spats them up or has to do other things, we’ll wonder then whether that’s an issue. I think what you’re gonna have a question is, and this is always a fair question, do I need the school if I have the athlete?

And that becomes an interesting dynamic there. I actually think, if you’re a mid-major school and you’re not getting a lot of shoe money for shoe or apparel money, I might sign an apparel deal with a sneaker brand, but I might go open in the in the shoe category with the idea that I can get somebody who signed a Puma contract at 18 and might come to me. I think you’ll see a little more of that in basketball than you do in football. Because I think the big schools are so locked into their shoe deals and they pay their coaches, but it can be a point of conflict. And so far, we haven’t heard what we hear in the high school ranks where, if your high school or club team is an Under Armour team, you get steered to an Under Armour school. We haven’t heard that happening. And obviously football doesn’t have that same players don’t have that same impact on the same level. But yeah, I think you’re gonna see more in the apparel wars show up.

Kelly: I think apparel is a lot different from, let’s say, a car dealership. One of the examples I always like to use is you think back to when Quinn Ewers had forgone his senior season high school before Ohio State. And you notice how a lot of dealerships, particularly in that Columbus area, who probably wouldn’t have been able to have the budget to get the entire athletic department, were able to kind of target specific athletes versus spending their entire budget on the athletic department. 

Boland: And it’s probably not a coincidence when you ask that question, CJ Stroud went to get his Bentley, not in Columbus, but in Akron. So they decided, “we like you CJ, we love you in Columbus, but we probably can’t give you a Bentley here in Columbus because we probably are working other deals.”

Now that’s a really interesting question and it has not gone the way I maybe expected it to go. And I think you’re going to see schools’ kind of pick this up, particularly now that they have collectives. This might be 3.0 of the same deal, but when you started NIL, there were gonna be categories that in almost every state that has an NIL law and all the NCAA guidance as the school has the ability to carve out categories that they won’t allow student athletes to compete in shoes, apparel, uniform, things like that.

Car dealerships have not gone that way, per se. Soda deals have but I would almost say to you, if you’re a university right now and you have a collective out there doing work, you would want to go sign up and have as many exclusive relationships as you possibly could and then have the collective feed athletes into those deals. 

You would have great value. Now what you would get out that, typically if it takes a little bit more of a step, if you have an exclusive sponsorship with the university, you probably can use the uniform and the apparel that the athlete couldn’t use in their own deals. So, you might have a really valuable commodity to give through your collective and through your official partners as they begin to work together. There are going to be some deals talked about soon that I think are going to have to feature those elements.

And I think that’s really the wave of the future. The idea that you can contract with a school, you can become the official provider in that category, you’re the only provider in that category where you can use the uniforms and the things that make it more distinct. So, I think it creates a lot of interesting sales opportunities for the institutions along the way on this one that they haven’t thought about. So, if I were an institution, I’d be just like the NFL. Nope, nope, you can’t wear those, you got Bose on the sidelines, you can’t wear those Beats headphones. The problem in a little bit, the college space is enforcement, right? I mean, you could fine Colin Kaepernick $2 million for wearing Apple headphones and having Apple and Dr. Dre pay that fine. You wouldn’t have that same oversight, but schools are gonna want to protect their brand and their marks. And I think you’re gonna want to have greater exclusivity in that area. So, yeah you probably will be a case where you can’t wear an Adidas suit to pick up the Heisman if you’re a USC player in the future.

Kelly: Yeah that was one I think kind of really flew under the radar. Because I saw that and was like, hmm, that’s interesting, given that he’s at a Nike school. Another thing that I wanted to follow up on is, when we look at the dynamics of the transfer portal for example and you have brands that are signing athletes, but then they’re leaving the school, I guess is there gonna be any regulation that you foresee from a contractual standpoint, given that athletes now have the freedom to transfer and it’s pretty much free agency now to go to any college that they want? How does that impact their NIL relationships with brands?

Boland: Well, they hope favorably that they go to schools that offer them more, but I wrote an article on a site that I write on called Culture and Sports which I wrote kind of the things that athletes should think about if they’re considering transfer. And my thought was that they should never consider dollars and promised dollars. They should always be thinking, does it enhance my professional opportunities? Does it help me finish my degree or get a different degree? 

Because I think a lot of the dollars were being that are being bandied about in the NIL space are elusory, they’re never gonna quite be there. The contracts all have limitations attached to them. They’re never quite as simple as we want them to be.

So, the idea that you’re chasing, so you’re leaving a school where you’re a known commodity to go somewhere else, you better have a really good reason to do it. And a pretty good guarantee. We’re beginning to see contracts written in a very creative way that make them void. If you leave a certain area, they make them void if you’re not participating in a certain conference, certain things. So, there are some limitations and yeah, you do put your current NIL at risk by going somewhere else. And, if you’re not doing it on a clear step up or a clear step for somewhere else, then I think you’re in a questionable space.

Kelly: No, that definitely makes sense as far as, not leaving or not positioning yourself just for the monetary value. Because at the end of the day, the ultimate marketing capability that you have as an athlete is you’re more so your production, how you’re seen, ultimately on the field.

Boland: Yep. And there is something to say about this. I mean, the literature that all the academics research that we see on this, the longer you’ve had a sponsor relationship, the better generally the better it is for both parties. The athletes that change over their sponsorships often tend to constantly keep replicating their deals and they don’t tend to last into their pro career or into retirement. So you’d like to ideally be somebody who doesn’t change brands a whole lot and is associated with one throughout their career or through the bulk of their career because it gives you much greater power as you go through that. That said, in the football cleat market, they’re not big numbers in the NFL unless you’re a star quarterback or star receiver.

And then you’re willing to go against the biggest brands out there. So now Adidas has offered money and that’s why they have [Patrick] Mahomes and [Aaron] Rodgers and a few others. So they’ve been willing to go buy the player, the player contract rather than the league and the shoe deal. So, it’s always a bit of a contraction game in that one, who do I have and what are my assets and how do I get bang for my buck? Not quite as expensively.

Kelly: Oh, absolutely. No, those are things to definitely consider. In closing, one of the questions I wanted to end with that I think is interesting is, I want to say it was back on Dec. 6 or 8, I think that there was this event called the Peacock Classic in which you had Baylor versus Gonzaga. And it was on the NBC streaming platform Peacock. What do you foresee kind of taking place as far as the relationship that certain streaming platforms have with the college game, and then ultimately how will that impact NIL because that event allowed for those athletes to interact with particular brands or sponsorships during the game? Will we see that replicated in another fashion, on another media platform or outlet moving forward?

Boland, Esq.: Yeah, I think we will. Obviously streaming is a bit of a zero-sum game because if you have the product, this is the only place you can go watch it a lot of the time. And it’s the reason you’ve subscribed to your 23rd streaming service. So, I think that’s an opportunity if I’m a sponsor who’s not in a major streaming service, but want to get into this game somehow and an endemic product, like wrestling shoes or mats or gear, I might sponsor events that can get me into that one. Remember the good news about an event you always win because you’re always in the camera view. You’re always in the space. You don’t have to worry that your athlete doesn’t, catch the big pass or make the big basket, that they’re always going to get some sponsorship out of it.

But yeah, I think it’s going to get complicated. You’re going to have the same conversation you had about who we could talk, who we should be talking about, who we want to give credit to. And this is going to be a complex thing as we go and it’s going to get complex for the athletes really quickly. One of the things I found when they first were allowed to do deals, they would do any deal they could do whenever they could do it to do whatever, rather than thinking about, well you really shouldn’t do it with competitive brands. And finally, one kid said, “why are you doing this? Why are you telling us we shouldn’t do this? It’s like, I want to get money, don’t you understand?” And I said, “yeah, but you’re going to get yourself sued. Your contract is going to tell you in one of these deals you can’t do another deal or you’re not going to get a second contract because they saw you doing a deal with a competitor the day later.” So, there’s some space in that as you go. But I think it’s an interesting one. I always think back to Allen Iverson, who had one of the largest collections of Jordan’s shoes in the world, but he couldn’t wear them in public because he had a Reebok deal.

Kelly: Absolutely, that lifetime Reebok deal. But it’s constantly evolving. But, more importantly, like I said, again, thank you so much Bob for your time.

Boland: Darian, it’s a pleasure.

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